Yazoo-flooding

We usually think of taking cases as arising from a single governmental action that occurs and immediately starts the statute of limitations running, such as cases involving a physical occupation of land, denial of the ability to make use of one’s property, or seizure of funds. We can easily identify the governmental action that caused the taking, and the date on which the six-year statute of limitations runs under the Tucker Act.

But in cases arising from gradual physical processes, such as erosion or flooding, determining the date of taking and the date by which a taking claim must be filed can be hard to identify. The Court of Federal Claims recently addressed these issues in a case involving the flooding of private property in the Yazoo Backwater area of the Mississippi Delta in Benford Adcock v. United States.

The Government moved to dismiss, arguing that the Adcock’s claim was time-barred because the taking claim accrued in 1962, when the U.S. Army Corps of Engineers completed the Old River Control Structure and began operations. The Government contended that Adcock knew of the facility and could have conducted an inquiry and learned of their potential claims before the statute of limitations ran.

The Court, however, disagreed, explaining that claim accrual is not the same in all taking cases, and where the effects of governmental action take time to become obvious, takings law does not require “that the owner sue when the first clod of dirt is dislodged.” Instead the law asks when has “the environmental damage” made “such substantial inroads onto the property that the permanent nature” of the taking is evident and the “extent of the damage” is foreseeable. The Court emphasized that determining “the point at which ‘stabilization’ occurs is a factual inquiry.”

Here, the Court stated that, although the Corps built the facility in 1962, the flooding of Adcock’s properties was gradual and “increased over time as sediment built up. . . .” The flooding of Adcock’s property began hitting record highs between 2016 and 2019, making Adcock’s 2022 complaint timely. Further, the Court explained, had Adcock sued in 1962 or in the initial years following the facility’s construction, that suit would have been “obviously premature.”

Finding that Adcock’s claims were timely and that they had adequately alleged causation. the trial court denied the Government’s motion to dismiss under Rules 12(b)(1) and 12(b)(6).

Read full decision here.